Thinking About Surrogacy

Last week I discussed a case of surrogacy gone badly awry. It’s been a while since surrogacy has been my topic and it was interesting to revisit it. The last post was an effort to move back to a broader context. But I’m about to go to a meeting to discuss surrogacy and between that and the comments, I thought I’d return to that topic once more to try to organize my thoughts.

One way to begin to think about surrogacy is to start with a question: Is the woman who gives birth a mother?

If she is, then I don’t think the law can compel her to give her child to the commissioning parents. I don’t think this makes surrogacy impossible, but it obviously shapes the practice of surrogacy. It’s the way the law is in the UK. A long time ago I started to think about a name for this sort of surrogacy and didn’t really come up with one, but I do think it would be useful to have something to call it.

The alternative to this form of surrogacy–whatever I call it–is what I called “binding surrogacy.” In binding surrogacy the surrogate is legally obliged to give the child to the commissioning parents. I think (though you all can push me on this) that the only way to get this result is to say that the surrogate is not a mother even though she has given birth to the child. Since historically giving birth has made one into a mother (legally and I think socially as well), this is a novel position that requires justification.

There are at least two arguments that one might make about why the surrogate is not a mother. First, assuming the surrogate is a gestational surrogate (that’s a woman who is genetically unrelated to the fetus), one could assert that it is the genetic relationship with a child that determines parenthood. Since the gestational surrogate is (by definition) not genetically related to the child, she is not a mother.

Second, you could assert that the agreement entered into between surrogate and commissioning parents determines parenthood. The surrogate is not a parent because she does not intend to be a parent. Instead, the parents are the people who intend to be the parents–the commissioning couple.

Adopting either one (or both) of these positions has broader implications. So for example, if you assert the genetic basis of parenthood, then you would make traditional surrogacy (where the surrogate is related to the child) unpalatable. (This might be worth thinking about because from the point of view of a woman planning to be a surrogate, using your own genetic material is easier and less intrusive. ) You’d also diminish the utility of surrogacy for single people, gay male couples, and heterosexual couples who cannot both produce viable gametes.

Of course, asserting the primacy of genetics as a basis for determining parenthood has many other implications that go far beyond surrogacy. We’ve been discussing this on the blog off and on for months. It seems to me it would be hard to say that genetics is determinative of parenthood in instances of surrogacy but not in other circumstances.

If you go the intent route, then it seems to me you would not distinguish between gestational surrogacy and traditional surrogacy. You would also be likely to make surrogacy available to a broader range of people (although you could exclude categories of people on other independent grounds.)

As with genetics it seems to me it might be hard to say that intention is determinative in surrogacy but not in other contexts. We haven’t talked as much here about what that stance might mean outside of surrogacy. It might be worth thinking about.

Indeed, although it seems to me that if you do not place much (or any) weight on genetic connection, then you would consider this possibility and then decide that it didn’t warrant any special treatment. But if the genetic connection is important, then these cases are quite different.

My initial reaction is that it is much cleaner to say that whoever is genetically related to the child are the parents because even if there were a contract and it was the commissioning parties intent to parent the child born of a “traditional” surrogate woman, one party could back out. They could use as a legal defense that they were not related to the child even though they breached the contract. I wonder what a court would find in that situation. What would have paramount importance? Hopefully the welfare of the child, but “whose” child? If the surrogate was genetically related to the child, I would think she has parental rights and would have to voluntarily relinquish them for the intended mother to adopt.

I’m not entirely sure what you mean by “cleaner.” Using genetic connection certainly makes things easy in the sense that you can readily settle disputes and you can predict the outcome with a lot of certainty. It won’t work in every case, though–see Robert’s comment just above. I’m thinking, too, about instances where one of the comissioning parents is genetically related and the other is not. What does it do for us then?

I also think that choosing this as a test will turn out to have broad implications in many other areas of parenting. I think that might be the topic of today’s post when I get to it.

I think your last question is a really critical one–does the law need to be consistent in all cases. In many ways, the advent of ART, particularly IVF and therefore gestational surrogacy, opened a whole new frontier for parentage law. In order to accomodate ART, new law had to be developed. The question about consistency in all cases asks, I think, whether you can sustain a separate set of rules (by which I mean law) for ART.

You are right, too, to compare adoption and surrogacy. If we are to treat them differently, then we have to have a reason for doing so. And intent at the time of conception seems to be where you have to look. I suppose the question is whether this is an adequate difference or, as you say, meager. And my guess is reasonable people will differ on this.

I think another way to describe the difference might be to say that in adoption, the child exists (or at least is on its way to existing) before plans are made. In surrogacy the child only exists because plans were made.

Quite the opposite- I objected to your use of the term surrogacy in the case of a woman pregnant with her own genetic child.

Comparison of the too is your position, not mine.
And I therefore challenge you to show me where you draw the line legally, since you have previously agreed with me that contracts prior to birth should not be relevant. (Unless I have misunderstood you.)

Kisarita…. I am currently a second time gestational surrogate. As I think it is absolutely true that the surrogate has a binding initial contract to relinquish all parental rights from pregnancy on, I also found in my experience that the law did not treat it as such in the state I deliver in. Even though in all of my contractual paperwork I was not the genetic mother, I was treated as such after the baby was born. This includes signing all paperwork as the mother for care, shots, etc. Also, there was a formal adoption of the child to the intended mother about three months after birth. I’m not understanding why some states are so behind that they cannot catch up with current times and allow some sort of paperwork during pregnancy to state who the intended parents will be and who shall legally sign the birth certificate. As far as I know you can just pull a guy off the street to sign your babies birth certificate to say it is the dad, so why can’t you do the same for the mom. Just because you birth a baby does not make you the mother! I am done with my family and trying to help others complete their families, I am totally sane and realize these babies are not mine from the initiation of embryos into my uterus. I’m excited to be able to grow them and take the best care I can of them for 9 months, then my job is completed!

I agree with you.
Laws need to change to the medical definition of parent/mother/father which is “one that has offspring” to ensure that authority over a child is transfered in a logical chain of custody.

A record of live birth is prepared to record the names of the two people whose human reproduction resulted in the live birth of their own offspring. The assumption of the attending physician (unless he is told otherwise) is that pregnancy is the result of human reproduction between the pregnant woman and the man identified by the pregnant woman.

The department of public health and center for disease control are recording births as records of human reproduction to control the spread of disease in the general population by keeping track of how many offspring each person produces. That just is not possible when gestational carriers are recorded as the mother’s of children they give birth to. To complicate matters the woman who conceived the child appears to have adopted your child.

Its just absurd – and demeaning that any woman has to adopt her own baby. I honestly think the only way to change the law is through some sort of Federal American’s with Disability Act thing where a women with a physical disability that prevents her from gestating and giving birth should not loose her title as mother to her own offspring. That is outrageously discriminatory.

I’m not talking about birth certificates related to identity and who has parental authority I’m talking about hospital records that are turned over to state and federal agencies that track health and human reproduction. I’m not talking about birth certificates issued at the local level those are issued by a county recorder for identification purposes. I’ve learned that a birth certificate does not imply human reproduction of the people named as mother and father like a hospital record most certainly does.

One way to begin to think about surrogacy is to start with a question: Is the woman who gives birth a mother?

I think a pregnant woman should be considered an expectant mother only if the child she is carrying is her own genetic offspring. That would be wonderful for people that hire surrogates because they would not have to worry about the surrogate kidnapping the child once born, that would be great for the surrogate who would not have to worry about her clients abandoning her with their child, it would be great for both the surrogate and her clients not to have to go thru adoption proceedings on a child that was never the surrogates to begin with and it is great for both of them because it does not appear on the surface that the surrogate is selling her baby when she is not – really its much better over all. It would not be great for women who are pregnant with another persons offspring if they paid to keep that persons baby once it was born. In my mind that woman is still a surrogate because she is using her womb to grow someone elses offspring and the only difference is that she is paying the genetically related woman for to keep the baby once it is born. In that case the woman is selling her offspring. The woman that is pregnant intends to be the parent the woman who sold her egg and allowed it to be fertilized does not intend to be a parent but I think intent or lack of intent is not a good criteria for determining who is or is not a child’s parent. Many children are dependent on support payments received from parents who never intended to become parents. If intent or lack of it became a criteria then many children would loose one or both parents who are their sources of support.

If we are going to be sticklers for accurate terminology we should differentiate between “expecting” and “pregnant;” pregnant denoting physical state of pregnancy and “expecting” denoting the expectation of assuming the parental role in the future.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.